Marise Payne (NSW, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

MIGRATION AMENDMENT (MAINTAINING THE GOOD ORDER OF IMMIGRATION DETENTION FACILITIES) BILL 2015

The Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015, amends the Migration Act 1958 to support the government's commitment to strong border protection and the establishment of a safe and effective system of immigration detention.

The government has a responsibility to detainees and other people in our Immigration Detention Facilities to ensure that they are free from harm. The government is also responsible to ensure that these facilities themselves are in good order, peaceful and secure. In amending the Migration Act 1958 the government is providing those working in our detention facilities with the tools they need to protect the life, health or safety of any person, and to maintain the good order, peace or security of an immigration facility.

The amendments in this Bill address issues arising from incidents at a number of Immigration Detention Facilities, which highlighted uncertainty, on the part of the Immigration Detention Services Providers, as to when it may act when confronted with public order disturbances in Immigration Detention Facilities. This uncertainty was considered in the Independent Review of the Incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre (the Hawke-Williams Report), conducted by Dr Allan Hawke AC and Ms Helen Williams AO in 2011. The Hawke-Williams Report recommended that the Department of Immigration and Border Protection more clearly articulate the responsibility of public order management between the Department of Immigration and Border Protection, the Immigration Detention Service Provider, the Australian Federal Police and other police forces who may attend an Immigration Detention Facility.

The amendments in this Bill provide a legislative framework for the use of reasonable force within Immigration Detention Facilities in Australia. Specifically, the Bill provides clear authority for the use of reasonable force in immigration detention in Australia to:

The provision of a legislative framework for the use of reasonable force will provide the Immigration Detention Service Provider with the tools needed to provide the first line of response and ensure the operation of the immigration detention network remains viable, against a backdrop of a change in the demography of Immigration Detention Facilities.

The onshore immigration detention network holds an increasing number of detainees who present behavioural challenges including:

The presence of high risk detainees with behavioural challenges has the potential to jeopardise the peace, good order and security of our Immigration Detention Facilities and the safety of all people within those facilities, including staff and visitors.

The use of reasonable force is not a new concept to the Migration Act 1958. Various provisions in the migration act authorise the use of reasonable force in specific circumstances. For example, it may be necessary in certain circumstances to use reasonable force to carry out identification tests. There are currently, however, no provisions in the Migration Act 1958 that authorise the use of reasonable force as proposed in this amendment.

In the absence of legislation, officers and staff of the detention services provider rely on common law powers, as conferred on ordinary citizens, to exercise reasonable force when it is necessary to protect themselves and others from harm or threat of harm. The extent of this authority is, however, limited.

Clearly, using reasonable force to manage issues of physical safety, good order, peace and security in an immigration detention facility is a matter for parliament to decide, not the common law.

This Bill provides for suitably trained and qualified Authorised Officers to use such reasonable force against any person or thing as the Authorised Officer reasonably believes is necessary to:

In particular, the bill provides for an Authorised Officer to use reasonable force if that officer reasonably believes it is necessary to:

The Bill inserts into the Migration Act 1958 the new definition of 'Immigration Detention Facility', that is: a detention centre established under the Migration Act 1958, or a place approved by the Minister as a place of immigration detention. This restricts the powers in this Bill to Immigration Detention Facilities in Australia, including Christmas Island.

The Bill inserts a provision that prevents the Minister or the Secretary from authorising an officer as an Authorised Officer unless the officer satisfies the training and qualification requirements determined by the Minister in writing.

The Bill inserts provisions that specifically limit the exercise of the power to use reasonable force by Authorised Officers, preventing them from doing any of the following:

Provided the reasonable force is exercised in good faith, the bill bars court proceedings against the Commonwealth, including an Authorised Officer. This provision provides the appropriate balance between protecting Authorised Officers in the exercise of the power to use reasonable force and ensuring that the power is exercised in good faith. The provisions in this Bill send a clear message to Authorised Officers that force is not to be exercised capriciously or inappropriately.

To further ensure that the use of force will not be abused, the Bill will provide for a statutory complaints mechanism. This mechanism will allow a person to complain to the Secretary about the exercise of the power to use reasonable force. The amendments will require the Secretary to provide appropriate assistance to any complainant.

This complaints mechanism does not restrict a person from making a complaint directly to another source such the State, or Territory police services, the Australian Federal Police or to the Ombudsman. An appropriate complaints mechanism is an important accountability measure in relation to the exercise of the power to use reasonable force.

The government considers that safe and effective immigration detention policies and strong border security measures are not incompatible. This legislation strikes an appropriate balance between maintaining the good order of a facility and the safety of the people within it and the need to ensure that the use of force is reasonable, proportionate and appropriate. The government is maintaining strong border security measures, but is ensuring that all people in Immigration Detention Facilities, including the detainees themselves, are safe from harm.

The preparation for the passage of this Bill includes the introduction of risk mitigation measures and governance controls. These measures will be in place and ready for the implementation of this legislation.

These measures include:

In conclusion, the government will continue to use immigration detention as a tool to manage compliance with Australia's migration law and the removal of those who have no right to remain in Australia. Immigration detention will continue to support the orderly processing of migration to our country.

I trust this Bill will have the support of members, most particularly those with an interest in ensuring the safety of all people in Immigration Detention Facilities, and I commend it to the Senate.

THE MIGRATION AMENDMENT (STRENGTHENING BIOMETRICS INTEGRITY) BILL

I am pleased to introduce the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015 on behalf of the government.

The amendments to be made by this Bill support changes introduced last year by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014. The Foreign Fighters Act, among other things, addressed the emerging threat of Australians seeking to travel overseas to fight with terrorist organisations. Importantly in the context of this Bill, it also enhanced the capability of the Department of Immigration and Border Protection to identify persons seeking to enter and depart Australia, and non-citizens who remain in Australia.

The amendments to be made by this Bill support the Prime Minister's National Security Statement on 23 February 2015 that further legislation to combat terrorism and keep Australians safe would be brought forward.

Recent terrorism-related events in Australia and globally serve to remind us that the threat of a domestic terrorist attack remains real. This Bill further strengthens Australia's border protection measures by enhancing the capability of the Department to identify persons seeking either to enter or depart Australia, and non-citizens who remain in Australia.

Measures in the Bill focus on biometrics, termed 'personal identifiers' in the Migration Act which are a unique identifier that is based on individual physical characteristics, such as facial image, fingerprints, and iris, which can be digitised into a biometric template for automated storage and checking.

The Department commenced collecting biometrics, facial images and fingerprints, from particular cohorts of non-citizens in 2006, and has progressively expanded its biometric collection programme using a risk-based approach. For example, in 2010, the Department commenced collecting biometrics from non-citizens applying for protection in Australia, and from overseas applicants for visas in particular higher risk countries.

Biometrics are an important integrity measure that contribute significantly to protecting Australia's border, and preventing the entry of persons who may threaten the Australian community. Once anchored to a person's biographic information, such as name, nationality and date of birth, a biometric adds significantly to the Portfolio's capability to verify that a person is who they claim to be, and links an individual to security, law enforcement, and immigration information.

Biometrics are more accurate than document-based checks of biographic detail, such as name, date of birth and nationality because they are relatively stable over time and are significantly more difficult to forge. As the utility of collecting biometrics rests on a foundation of accurate identification, fingerprints provide higher integrity identity assurance than identity documentation or facial images.

The Department has made more than 9,000 fingerprint matches with Australian law enforcement agencies and the immigration agencies of other countries. These matches have revealed undisclosed security and criminal histories, as well as discrepancies between the biographic data provided to the Department and that provided to another agency.

As Minister for Immigration and Border Protection, I regularly review immigration cases where biometrics have been utilised by the Department to expose identity and/or immigration fraud. This includes individuals who have returned to Australia – or tried to return – under assumed identities, years after being removed from this country. Some others have attempted to gain protection here under assumed identities when they already have protection in safe third countries.

Current biometric measures have exposed fraudulent and illegal activity in these instances, but the sophistication of the technology used to enter Australia illegally strains the resources of Australia's border protection agencies each day. It is the government's duty to ensure our laws are equal to the task which is faced by our border agencies. That is, while the current biometric programme has effectively supported Australia's border protection efforts since it was introduced more than ten years ago, it now needs to be updated to more effectively meet current threats and to keep pace with advances in biometric technologies.

The Bill provides for a simplified scheme to collect biometrics, particularly fingerprints, but does not introduce a universal biometrics collection policy. The Department will continue to facilitate the smooth travel to Australia of the overwhelming majority of people who are legitimate travellers and law-abiding people, without collecting additional biometrics.

While acknowledging the impact on travellers in circumstances where a certain amount of identity verification is required, the increased collection powers are proportionate to the legitimate purpose of protecting the Australian community and the integrity of the migration programme.

The Bill will address gaps in the existing biometric legislative framework and replace seven existing provisions in the Migration Act, which separately authorise the collection of biometrics in particular circumstances, with a single broad discretionary power to collect biometrics for the purposes of the Migration Act or the Migration Regulations.

Streamlining the existing multiple provisions will remove inconsistency and duplication, and enhance the Department's efforts to achieve important government policy objectives. These include removing current restrictions on the circumstances where biometrics can be collected, and providing flexibility in the collection of biometrics from citizens and non-citizens who are arriving and departing Australia.

The Bill provides a broader power to collect biometrics from non-citizens who have been identified as of concern after their arrival, and from behaviour while living in the Australian community.

Significant numbers of non-citizens have not had identity, security and criminal history checks conducted under the Department's biometric programme, either because of the timing of their entry into Australia, or because of their method of arrival.

Only a small number of non-citizens are required to provide their biometrics for checking each year. In 2013/14, less than two per cent of non-citizens granted a visa to come to Australia provided biometrics to the Department. As a result, the higher integrity identity, security, law enforcement and immigration history checks that are possible using biometrics, have only been conducted on a small number who have travelled to Australia since 2007.

Non-citizens who may be required to provide biometrics include those under investigation by immigration officers for identity fraud or breaches of visa conditions. Biometrics may also be required from an individual who is suspected of failing to disclose adverse information when they applied for their visa.

Biometrics collected will be used to conduct additional checks with domestic and international agencies to link individuals to security, law enforcement, and immigration information known to other agencies, but which the individual has not disclosed to the Department. The ability to verify information against data held by Five Country Conference partners as well as domestic agencies provides greater integrity to the immigration system, protection against the spread of terrorism and human trafficking and will assist in resolving the current asylum seeker caseload.

While the Bill will continue to allow the collection and use of biometrics at the border, recent examples of Australians leaving to participate in foreign conflicts have highlighted the need for additional actions to detect such persons at the border. The example of convicted terrorist Khaled Sharrouf who in December 2013 used his brother's passport to leave Australia to participate in terrorist-related activities illustrates the need for fingerprint-based checks. The collection measures in this Bill provide the tools to stop people like Khaled Sharrouf at the border due to the higher level of accuracy in identifying individuals provided by fingerprint verification.

The Bill provides for a framework to enable manual fingerprint-based checks to be carried out using mobile, hand-held devices to detect persons of concern. The checks will be conducted at airports and seaports and will take 20-40 seconds to complete. A traveller's identity will be checked against immigration and security agency data holdings using up to four finger images. The images will not be retained following completion of the check.

This enhanced capability to conduct meaningful cross-checks with relevant agencies' data holdings will respond to potential alerts or threats before someone boards an aircraft or ship, or is cleared to move into the Australian community.

These mobile devices will also be deployed for use in other circumstances to assure the identity of non-citizens during key transactions with the Department.

The Bill will remove existing restrictions in the Migration Act on collecting biometrics from minors and incapable persons, to address current inconsistencies in the Migration Act where certain restrictions on collecting biometrics do not apply at Australia's borders, but do apply in other circumstances, such as at the time of applying for a visa.

The removal of existing restrictions on collecting biometrics from minors is primarily a child protection measure aimed at preventing child trafficking and/or smuggling. Collecting personal identifiers, particularly fingerprints, from children will permit a higher level of integrity in identifying minors overseas where known cases of child smuggling and trafficking reveal higher risk. This includes conducting fingerprint-based checks against lists of missing or abducted children with countries of suspected origin as well as against Interpol missing persons records. Fingerprints provide a unique capability to accurately identify individuals that is not possible using a facial image, particularly if the person is a minor. Unlike a facial image, which is subject to considerable change as a person ages into adulthood, fingerprints are relatively stable throughout a person's lifetime.

Further, Australia, like the United States, the United Kingdom and many other countries face the return of potentially radicalised minors after participating in conflicts in the Middle East and elsewhere. While it is an uncomfortable proposition that a minor may be capable of involvement in terrorist activities or extreme violence, the conflict in the Middle East has provided evidence of the involvement of children. Through the Five Country Conference data sharing arrangements, Australia would be able to access fingerprint-based records of minors who may already be known to the security agencies of other countries. Where a minor is suspected of involvement in a terrorist activity or serious criminal activity, fingerprints would enable searches of Five Country Conference partner databases and Australian law enforcement data holdings.

In conclusion, the Australian government is committed to fulfilling its most important responsibility—to protect Australia, its people and its interests. This Bill is an important part of preventing persons of risk from entering Australia and remaining in Australia undetected. The amendments will expand the Department of Immigration and Border Protection's capabilities to identify individuals through biometric checks, which are more accurate than current document-based checks. The Bill creates a new legislative framework for collecting biometrics that will contribute to improved decision-making, whether the decision is to grant a non-citizen a visa to come to Australia, permit entry or departure at the border, or to allow a non-citizen to remain in Australia.

The government is serious about border protection. The measures in this Bill underscore that commitment.

I urge all members to support this Bill and ensure these necessary reforms.

I commend this Bill to the Senate.

Debate adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.